UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CIS_4862_2003 (20 May 2004)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Burnley appeal tribunal dated 2 October 2003 is erroneous in point of law, for the reason given below, and I set it aside. It is expedient for me to substitute a decision on the claimant's appeal against the Secretary of State's decision dated 15 January 2003 having made the necessary findings of fact (Social Security Act 1998, section 14(8)(a)(ii)). My decision is that the appeal is allowed and that the claim made on 31 December 2002 was in time for the period beginning on 14 December 2002. The claimant is entitled to income support for the period from and including 14 December 2002. It is now for the Secretary of State to calculate the amount of income support payable for the period from 14 December 2002 to 30 December 2002, for which entitlement had not previously been awarded, as that calculation is an issue not raised by the appeal and it is better that I should not consider the issue in my substituted decision (Social Security Act 1998, section 12(8)(a)).
2. The claimant is recorded by the relevant income support office as having requested an income support claim form by telephone on 23 October 2002. The claimant has said that he had been told in an earlier telephone conversation with his incapacity benefit office that an income support claim form would be sent out, but that does not now need to be investigated. The claim form was sent out with the instruction that benefit could be paid from 23 October 2002 if the form was returned fully and properly completed by 25 November 2002. The form as signed by the claimant on 22 November 2002 was received by hand on that day. In the part on savings and property, the claimant had entered some amounts for his bank current account and an ISA. He also ticked "yes" against "Money or property held in trust", but did not enter an amount (he may also have written "not applicable"). The claim form instructed that proof of all savings had to be provided if they were worth more than £2,500 in total (as the claimant's did). There was an indication on the form that he wanted to claim income support from 12 October 2002, when his wife ceased to receive maternity pay.
3. The form was sent back to the claimant on 25 November 2002 with a letter instructing him to answer the parts of the form which were marked, which included the box on money or property held on trust, and saying that the form and the information was needed back immediately. The claimant dealt with the other points, but seems to have written against the trusts box "to be disregarded as it is derived from a claim for personal injury". The claim form was received back on 28 November 2002.
4. On 5 December 2002 a letter was sent to the claimant asking him to answer the following question and saying that the form was needed back immediately:

"In reply to your comment about the money held in trust not needing to be verified. In order to process your claim for Income Support we still need to see verification of this money held in trust. We need verification of when this money was awarded and the amount etc."

The claimant signed the form and dated it 20 December 2002, enclosing a copy of the trust deed. The form was received in the Departmental office on 31 December 2002. The deed, dated 10 August 2000, recorded that the claimant, as settlor, had transferred £412,000 derived from a sum paid in settlement of an action for personal injury to trustees to be held during the claimant's lifetime on trusts including the powers to pay income to him and to declare that any part of the fund was to be applied for the claimant's benefit.

5. A decision was then made on 15 January 2003 awarding the claimant income support from and including 31 December 2002 and possibly also stating that the time for claiming income support could not be extended so as to allow entitlement for the period from 12 October 2002 to 30 December 2002. The decision was not altered on reconsideration. The claimant appealed. In the appeal he said that he received the letter asking for details of the trust on 14 December 2002, which he requested from his financial adviser. As nothing had arrived by 20 December 2002, he made another request. The trust deed was received on 29 December 2002 and then posted on to the Department. Later in the appeal process a letter dated 23 September 2003 from a director of the claimant's financial adviser, Personal Financial Planning Ltd, was submitted, which said that at the claimant's request on 14 December 2002 his office sent out a copy of the trust deed to the claimant's home address and on 19 December 2002 a further copy was sent as the first one had not been received.
6. The Secretary of State's written submission to the appeal tribunal asserted that the income support claim could not be treated as made on any date earlier than 31 December 2002, by reference to regulations 4(1A) and (9) and 6(1A) of the Social Security (Claims and Payments) Regulations 1987. It went into no further detail, as it was thought at the time that there were no appeal rights on such questions, and concentrated on the rules in regulation 19 of the Claims and Payments Regulations on the extension of time for claiming, what is usually called backdating. It is now known that far fewer questions are excluded from the right of appeal than were previously thought. However, there is no need to explore the issue, as there seems no doubt that the Secretary of State was right about the date of claim.
7. I shall not set out all the regulations. Regulation 4(1A) makes it a necessary condition for an income support claim that it be made on the approved form, and in accordance with the instructions on the form subject to some limited exceptions. None of the exceptions apply in the present case. Then regulation 4(7A) provides that, if a defective income support claim is received, the Secretary of State is to inform the claimant of the defect and of the effect of regulation 6(1A) about the date of claim. A claim is defective if it does not meet the requirements of regulation 4(1A) and properly completed if it does meet those requirements (regulation 4(9)). The crucial provision is thus regulation 6(1A):

"(1A) In the case of a claim for income support--

(a) subject to the following sub-paragraphs, the date on which a claim is made shall be the date on which a properly completed claim is received in an appropriate office or the first day in respect of which the claim is made if later;

(b) where a properly completed claim is received in an appropriate office within one month of first notification of intention to make that claim, the date of claim shall be the date on which that notification is deemed to be made or the first day in respect of which the claim is made if later;

(c) a notification of intention to make a claim will be deemed to be made on the date on which an appropriate office receives--

(i) a notification in accordance with regulation 4(5); or

(ii) a defective claim."

Regulation 4(5) provides that a claimant who notifies an appropriate office by whatever means of an intention to make a claim is to be sent an approved claim form.

8. Applying those provisions to the present case produces the following result. First, it can be presumed that the first notification of the claimant's intention to claim income support was in the telephone call of 23 October 2002, and not any earlier, as that is in fact more favourable to him at this stage. Under regulation 6(1A)(b), if the properly completed claim form had been received within one month, the claim would have been treated as made on 23 October 2002. The claim form received on 22 November 2002 was not properly completed, both in terms of not having answered all the questions according to the instructions and not having supplied the evidence required by the instructions. Thus it was a defective claim. The defects were properly brought to the claimant's attention under regulation 4(7A). The claim form received on 28 November 2002 was still defective in both respects. The claimant was again informed of the defects in the letter of 5 December 2002. The claim form as properly completed by the answers and evidence required was received on 31 December 2002. That was more than one month from the defective claim having been received on 28 November 2002. But even if it had been received within one month, regulation 6(1A)(b) could not have operated to make the date of claim 28 November 2002. That is because the month in regulation 6(1A)(b) runs from the date of first notification. In the present case, the date of first notification was 23 October 2002 and on any footing the properly completed claim was received more than one month from that date. So the actual date of claim is 31 December 2002.
9. On the issue of "backdating", the Secretary of State's written submission to the appeal tribunal referred to regulation 19(4) to (7) of the Claims and Payments Regulations and asserted that the circumstances did not fall within regulation 19(5) or (7). The correct time for claiming was the first day of the period for which the claim was made (regulation 19(1) and Schedule 4). It was said that a claim date could be extended by up to three months maximum when one or more specified circumstances applied as a result of which the claim was late. Although the claimant blamed Christmas post delays and the need to obtain the trust deed, it was too late to meet the target date when he initially sent the form in on 22 November 2002. Therefore, it was said, regulations 19(4) and (6) were not satisfied and the claim could not be extended to cover the period from 12 October 2002 to 30 December 2002.
10. The claimant attended the hearing on 2 October 2003 with his representative, Mr Briscall of Pendle District Citizens Advice Bureau. The appeal tribunal disallowed the appeal. The statement of reasons effectively repeated what had been said in the Secretary of State's written submission on regulation 19. The appeal tribunal also rejected the claimant's evidence that he had been told by the incapacity benefit office on 25 September 2002 that an income support claim form would be sent.
11. The claimant now appeals against that decision with my leave. The grounds put forward in Mr Briscall's letter dated 19 November 2003 included that it had been argued at the hearing that regulation 19(7)(c) on adverse postal conditions applied, but that the appeal tribunal made no mention of that provision or the details of the claimant's evidence of what had happened following his receipt of the Department's letter of 5 December 2002. In granting leave I raised the question of whether, because of the rule in regulation 19(6) that the time for claiming could only be extended by a maximum of one month, the claimant could gain any practical advantage even if regulation 19(7)(c) did apply.
12. The representative of the Secretary of State, in the submission dated 18 February 2004, accepted that the appeal tribunal had erred in law in the way mentioned in the previous paragraph, but submitted that either the appeal to the Commissioner should be dismissed or the Commissioner should substitute a decision that the claimant was not entitled to income support before 31 December 2002. Mr Briscall has commented on that submission.
13. Regulation 19(6) of the Claims and Payments Regulations provides (as at December 2002):

"(6) In the case of a claim for income support, jobseeker's allowance, working families' tax credit or disabled person's tax credit where the claim is not made within the time specified for that benefit in Schedule 4, the prescribed time for claiming the benefit shall be extended, subject to a maximum extension of one month, to the date on which the claim is made, where--

(a) any one or more of the circumstances specified in paragraph (7) applies or has applied to the claimant; and

(b) as a result of that circumstance or those circumstances the claimant could not reasonably be expected to make the claim earlier."

Regulation 19(7) then sets out a number of categories of circumstances, including in sub-paragraph (c) that "there were adverse postal conditions". Many of the categories refer to circumstances immediately before the making of the claim which might have impeded the delivery of the claim. Regulation 19(4) makes the same provision as regulation 19(6), but with a maximum extension of three months, and the relevant categories of circumstances are set out in regulation 19(5).

14. It is clear that the claimant's case is not to be defeated merely because the income support claim was expressly made for the period from 12 October 2002, so that extending the time specified in paragraph 6 of Schedule 4 to the Claims and Payments Regulations (the first day of the period in respect of which the claim is made) forward would only get to 12 November 2002, well before the date of actual claim. In CIS/4354/1999, reported as R(IS) 3/01, (a decision of mine) and CIS/849/1998 (a decision of Deputy Commissioner Green) it was held, in relation to regulation 19(4), that the maximum period of extension should be calculated backwards from the date of actual claim, not forwards from the first day of the period expressly claimed for. In CIS/849/1998 that was done by holding a claim for a longer period to encompass a claim from the start of the maximum period of extension back from the date of actual claim and (as I think was intended in paragraph 7 of the decision) a claim from a day within that maximum period in which the conditions of regulation 19(4) and (5) were met. That general approach was apparently also taken in another decision of a Deputy Commissioner in CJSA/3994/1998 (which is mentioned in the notes at paragraph 2.108 of Volume III, Administration, Adjudication and the European Dimension, of Social Security Legislation 2003, but which I have not been able to find).
15. When I decided R(IS) 3/01 I was not aware of either of those decisions. For the purposes of R(IS) 3/01 I only needed to rule that the phrase "subject to a maximum extension of three months" meant "subject to the rule that entitlement to benefit cannot be awarded for any period falling more than three months before the date of claim". There was some old Commissioners' authority suggesting that a claim expressly made for a period could not be interpreted as including claims for shorter periods within that longer period. However, the Secretary of State supports (in paragraph 14 of the submission of 18 February 2004) a proposition that in appropriate circumstances a claim can be taken as including a claim for a period starting with the earliest date which would make the claim in time. In view of that and of the two decisions of Deputy Commissioners, I find, in the context of the Claims and Payments Regulations as amended from 1997, the proposition supported by the Secretary of State to be correct in law. The proposition applies as much to regulation 19(6) as to regulation 19(4).
16. The Secretary of State's submission is, though, that that proposition does not help the claimant here, because of the condition in regulation 19(6)(b). Paragraph 13 of the submission of 18 February 2004 is as follows:

"13. If the Commissioner accepts that the possible delays caused by Christmas postal arrangements may allow regulation 19(7)(c) to be satisfied in respect of the date that the claim was received I submit that the test of reasonableness contained in regulation 19(6)(b) was clearly not satisfied as the action of the claimant in submitting the claim on 22/11/2002 and his awareness of the evidence requirements of the claim form, confirmed by his comments on that form, shows, I submit, that he could reasonably have been expected to provide the information earlier than he did."

The submission had earlier referred to the statement in paragraph 18 of R(IS) 3/01 that, if a claimant would reasonably have been expected to make a claim even one day earlier than the actual date of claim, the test of regulation 19(4)(b) was not met.

17. That is a powerful submission which I at first thought was decisive against the claimant. However, in my judgment it is inconsistent with the proposition accepted in paragraph 15 above and with the general structure of regulation 19 of the Claims and Payments Regulations. The question of reasonableness under regulation 19(4)(b) and 19(6)(b) can only be asked in relation to each particular period of claim.
18. It cannot be allowed as a general proposition that a unjustified failure to make a claim before the beginning of the period of claim should prevent the operation of regulation 19(4) or 19(6). One can take the example of a situation where for no good reason at all a claimant delays making an income support claim for several months, then just after he posts the a claim from the current date there is a strike by postal workers which holds up delivery of the claim for some weeks. The circumstances would fall within regulation 19(7)(c) and as between the date of posting and the date of delivery it could be said that the claimant could not reasonably have been expected to claim earlier, because he would not have known whether his claim might have got through or whether he ought to take steps to obtain and put in another claim form. Is the claimant to lose the benefit of the operation of regulation 19(6) and (7)(c) from the date that the claim form was posted just because of his earlier delay? If not, why should the result be different if the claim had been made for the missing months as well as from the current date? If there was a different result, that would deprive the rule that the maximum period of extension of time is to be calculated back from the actual date of claim of much of its practical effect.
19. When one looks at sub-paragraphs (a) (appropriate office closed), (b) (claimant unable to attend office to claim because of transport difficulties) and (g) (death of a close relative in the month before the date of claim) of regulation 19(7), it is plain that the intention is that claimants should not be disadvantaged by circumstances occurring immediately before the date of claim. It would be inconsistent with that intention if claimants were deprived of the benefit of those provisions merely because there had been some unjustified delay at an earlier stage. Those provisions should be allowed to operate at least for the period for which the relevant circumstances operate. That result is achieved by considering the question of reasonableness in relation to each separate potential period of claim prior to the date of actual claim.
20. Accordingly, it must be concluded that the appeal tribunal erred in law by failing to explain why the claimant's case on adverse postal conditions did not succeed. There was at least an arguable case raised by the evidence he put forward, which needed to be dealt with specifically. The appeal tribunal's decision is set aside for that reason.
21. In the circumstances, there would be nothing to be gained by a rehearing before a new appeal tribunal. No new evidence is likely to emerge. It is expedient for me to substitute a decision on the claimant's appeal against the decision dated 15 January 2003, having made the necessary findings of fact.
22. I find that the sequence of events after 5 December 2002 was as described by the claimant in his appeal to the appeal tribunal, and set out in paragraph 5 above, with the amendment that he asked his financial adviser a second time for a copy of the trust deed on 19 December 2002, not 20 December 2002. I think that the financial adviser is more likely to have reliable records of such dates.
23. I have hesitated over two dates. The first is the date on which the claimant received a copy of the trust deed from the financial adviser. The claimant says it was 29 December 2002 and that he immediately sent it on to the Department. But the form returned to the Department was dated 20 December 2002. The second copy of the trust deed could have been delivered to the claimant on 20 December 2002 if it had been posted by the financial adviser on 19 December 2002. If the claimant had delayed for that long in sending the copy of the trust deed to the Department, even over Christmas, that would have been fatal to his case. However, on balance, in view of the consistency of the way in which the claimant has put his case, I accept that he did not receive the copy of the trust deed until 29 December 2002 and that the date on the form was a slip (possibly as between 29 and 30 December).
24. My second hesitation is over the date on which the claimant received the Department's letter dated 5 December 2002. He says that he received it on 14 December 2002, which is a long delay. However, there is no specific evidence of the date on which the letter was posted, rather than the date put on when it was written, there could be long delays in the post before Christmas and the financial adviser has confirmed that the claimant first asked for a copy of the trust deed on 14 December 2002, when he could have been expected to act quickly on the prompting of the Department's letter. On balance, I accept that the letter of 5 December 2002 was received on 14 December 2002.
25. Applying regulation 19(6) and (7) of the Claims and Payments Regulations to those findings, the maximum extension of time would allow the claim made on 31 December 2002 to be in time for a claim for a period beginning on 31 November 2002. Starting at 31 December 2002 it seems to me that, asking the question in relation to a potential claim for the period from 14 December 2002, the claimant could not reasonably have been expected to make the claim earlier than 31 December 2002. He took prompt action to obtain the necessary evidence from his financial adviser, chased up progress and sent the evidence on to the Department promptly when it arrived. I am satisfied that adverse postal conditions in the run-up to and over the Christmas were part of the reason for an earlier claim not being reasonably expected, so that the claim can be treated as in time for 14 December 2002.
26. Can the claimant go back any further? The next relevant date is 5 December 2002. On my findings of fact, adverse postal conditions can be said to have been operative in that additional period. At that point the claimant had sent back the form received promptly by the Department on 28 November 2002, with the reply that the amount of the trust fund was irrelevant as it was to be disregarded as deriving from compensation for personal injury. He thought that he had done enough to provide relevant information, as he had been told, rightly, by the financial adviser that the value of the trust fund would be disregarded. However, in my judgment the claimant could in the period from 5 December 2002 to 13 December 2002 reasonably have been expected to make a claim, in the sense of providing information and evidence in accordance with instructions on the claim form and in the letter of 25 November 2002. A reasonable person with the information which the claimant in the present case had would not have thought that it was unnecessary to provide the Department with information about the trust fund, even though it was right that the value would be disregarded. Such a view would have entailed the Department simply taking the word of a claimant that a capital resource, of unknown size (but large enough to be worth setting up a trust arrangement), fell into a category which would be disregarded. It was not reasonable to act on that view by declining to answer specific questions. Thus the condition in regulation 19(6)(b) is not met in relation to the period from 5 December 2002 to 13 December 2002 and the extension of time under regulation 19(6) cannot go back further than 14 December 2002. The break in the chain means that it is unnecessary for me to look at the circumstances prior to 5 December 2002.
27. Mr Briscall has also submitted that the claimant was entitled to the assistance of regulation 19(4). In particular, he argued in the application for leave to appeal to the Commissioner and in his reply to the Secretary of State's submission of 18 February 2004 that what the claimant was told by the officer in the incapacity benefit office on 25 September 2002 brought him within regulation 19(5)(d). It appears from the record of proceedings (top of page 34L) that that was also part of the argument to the appeal tribunal.
28. The appeal tribunal rejected the claimant's evidence that that conversation took place, but on the assumption that it did, the circumstances fall outside regulation 19(5)(d). The condition there is that a claimant was given information by an officer of the Department for Work and Pensions or the Board of Inland Revenue which led him to believe that a claim for benefit would not succeed. So far as I can see, the claimant's complaint is that the officer on 25 September 2002 said that she would get an income support claim form sent to him and that that did not happen, so that he had to enquire again on 23 October 2002. I can understand the claimant's feeling that he was disadvantaged if that was what happened, but it does not suggest that anything was said by the officer on 25 September 2002 to lead the claimant to believe that a claim for income support would not succeed. On the contrary, the point of sending out a claim form was that a claim might be successful and, on his own account, the claimant waited until 23 October 2002, not because he thought there was no point in claiming income support, but because he was waiting for the expected claim form to arrive.
29. Thus, the claimant cannot take advantage of regulation 19(4) on the basis on falling within regulation 19(5)(d), quite apart from the problem of an intervening period before 31 December 2002 during which I consider that the claimant could reasonably have been expected to make a properly completed claim. I can see no other category within regulation 19(5) which could possibly be relevant. The advice given by the financial adviser could not fall within regulation 19(5)(c), because there is no evidence that it was in writing and, as above, the advice could not have led to a belief that a claim for income support would not succeed, only to a contrary belief as the value of the trust fund was to be disregarded.
30. Accordingly, I substitute the decision set out in paragraph 1 above. The calculation of the benefit payable in the period from 14 December to 30 December 2002 is to be the subject of a separate decision by the Secretary of State. I have exercised the discretion in section 12(8)(a) of the Social Security Act 1998 not to consider that issue.

(Signed) J Mesher

Commissioner

Date: 20 May 2004